While blatant use of the gay or trans panic defense is rare today, the defense can use “heat of passion” and “sudden quarrel” defenses for which evidence of provocation must be provided. One factor that is still accepted as a legitimate motivation is discovery of a person’s sexual orientation or gender identity — for instance, this would allow for a murder charge to be downgraded from murder to manslaughter. Most often today, the defense is used to try to lessen the sentences of people who have murdered trans people, reinforcing institutionalized transphobia and communicating that, in the eyes of the law, trans lives are worth less than those whose gender and birth-assigned sex align.

High profiled cases include the 2002 murder of 17-year-old Gwen Araujo who was beaten and strangled by four men in Newark, California. During the two subsequent trials, the defendants claimed they had “panicked” when they learned that Araujo was trans. While ultimately two of the men were convicted, they received sentences of manslaughter and no hate crimes charges were added even though today it seems clear the crime was motivated by anti-trans prejudice.

Rick Zbur, executive director-elect of EQCA, which has campaigned for the bill, says that the panic defense is a relic that should have been stripped from California law a long time ago. “This defense legitimizes prejudice and hate, and it should play absolutely no part in California’s justice system,” Zbur is quoted as saying. “This bill helps eliminate anti-LGBT bias as a ‘reasonable’ basis to ease the punishment for violent crimes against LGBT people.”

Assemblywoman Susan A. Bonilla, lead sponsor of the bill, adds that, ”There is absolutely no justification for the use of ‘panic defenses.’ Clearly this tactic has been utilized by defendants, unjustly targeting members of the LGBT community, based on damaging stereotypes. With AB 2501, we are moving forward to ensure equality in our courts and making it very clear that discrimination against the LGBT community is intolerable and unacceptable.”

Earlier this year, the ABA adopted a policy against the use of the gay or trans panic defense in which it made it clear that no attorney should attempt to use such a defense in order to get a client a lesser sentence. This isn’t technically binding, though the ABA can censure those who break the rule, but formed part of a call for lawmakers to make changes to state laws to ensure that the so-called defense can’t be lawfully used.

It’s also worth pointing out that the gay or trans panic defense has never had any scientific support, or to put it another way, there is no recognized psychological phenomenon that of itself would mitigate a violent, murderous outburst solely on grounds of discovering a person’s sexual orientation or gender identity.

While the no votes on the Assembly bill, and its senate counterpart, came from Republicans, the bill has overwhelming bipartisan support and so shouldn’t be a controversial one for Governor Brown to sign — as Brown is a noteworthy LGBT-rights supporter it’s unlikely he will refuse to add his signature. Indeed, among those few who do oppose the legislation there seems to be an agenda at work that isn’t specifically about this legislation but rather one that seeks to prevent other gay and, in particular, trans-inclusive legislation from passing, such as the streamlining of California’s birth certificate amendment process, a piece of legislation designed to help trans people update their gender markers more quickly.

When Governor Brown signs the legislation it will make California the first state in the United States to specifically ban the gay and trans panic defense. It’s hoped that, just as with the ex-gay therapy on minors ban, this law could be the inspiration for other states to attempt to outlaw the panic defense, particularly as the legislation has proved largely uncontroversial even among religious conservative circles.

Photo credit: Thinkstock.

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90 comments

If someone is theophobic (phobia against a god or religion), could they use that as a defense? I panicked because I thought they wanted to convert me.
Get real, people. If you find out somebodys LGBT and it makes you uncomfortable, just walk away. No need to panic.

I don't think there should ever be a reason to use panic as an excuse unless it was preceeded by some type of physical assault by the other party. I must not understand the reasoning behind the original law.

Claire J.
I understand your point, but I would say that it is not the same as claiming gay panic or straight panic. Not in the sense it has been used anyway. This would be more a case of some one being sexually harassed and having enough of it. The panic defense is not the same. It is often used when the offender already knows who he is dealing with, or in the case sometimes a man hits on a transgender women and finds out what he was going after. In many cases the attackers will lure a gay man into a situation and still try to claim gay panic.. 'Oh god, we were at the bar and I swear he kept looking at me, so me and my buddies invited him out into the alley...I swear your honor, I just panicked. I mean I'm straight and he's a pansy queer I felt threatened and took him to the alley with my other three buddies.'

Actually I had in mind a situation which occurred to a friend of a friend, who actually was a straight bloke who ended up fleeing the UK because he was araid he would otherwise be jailed for assault after hitting a woman in a pub. He was an ex soldier who was quite highly strung and this woman was steaming drunk (really the bar staff were at fault for keeping on serving her in that state) and she wouldn't leave him alone but kept coming back again and again trying to grab his genitals, until his nerve snapped. I was just thinking that in that sort of situation, the more powerfully you don't fancy the person, the more powerfully they're going to get on your nerves.

I was thinking of the sort of situation which shades from a pass into sexual harrassment if you don't fancy the person. If a drunken woman came up to you in a pub and grabbed your balls, for example, as drunken women here sometimes do do to men they fancy, any man might dislike it if he didn't specifically fancy that woman, but a gay man would probably dislike it worst. Some of my gay friends are really badly freaked by the idea of women in a sexual context.

But it's only a mitigation, not a full excuse, and it only mitigates as far as it takes to make the person go away.

Claire J.
So are you saying that when a women is flirting with me because she thinks I am straight, I have the right to panic and punch her. This happened often when I was younger. I don't think this is the case in most of the gay panic cases however. In many cases the persons using the defense already knew the person was gay or transgender

I can in fact see why suddenly discovering that somebody is gay or bi might cause alarm, because if you are straight then somebody of your own gender is automatically somebody you don't fancy. Remove the LGBT aspect and just look at it as "Finding out that somebody you really strongly don't fancy nevertheless fancies you" (or you fear that they might do) - like e.g. a straight woman who finds out that some really sweaty unattractive bloke has designs on her person.

That might excuse punching them in the eye in a moment of panic if they seem to be trying to get into your pants - but it doesn't excuse killing them, or hitting them if they're not doing anything which suggests that they have immediate personal designs on you. Potentially being fancied by somebody you really strongly don't fancy back is something any reasonably attractive human has to learn to put up with, without getting violent about it unless they start getting grabby.